Friday, 25 January 2008

New travel document requirements for USA citizens

Under new regulations and procedures announced to take effect over the next month, citizens of the USA will, for the first time, be required to obtain USA government permission in order to return home to their own country from abroad -- from anywhere else in the world, by air or sea or land.

On no other aspect of the right to travel is international law more clear than on the right of return to the country of one's own citizenship: "No one shall be arbitrarily deprived of the right to enter his own country." The new regulations are a flagrant violation of the obligations of the USA as a party to the International Covenant on Civil and Political Rights and other international human rights treaties, as well as a violation of the Constitutional duty of the USA government to treat such treaties as the highest law of the land.

It's to be hoped that some civil liberties or human rights organization or individual will go to court before the end of this month to enjoin the government from putting these rules and procedures into effect, and that citizens will assert their rights by attempting to cross borders without papers, and suing those goons from the USA Department of Homeland Security who try to stop them. But if that doesn't happen, here's what the DHS has promulgated as "final rules" and "procedures":

As I've noted previously, the so-called International APIS final rules effective 19 February 2008 will require all travellers to, from, or via the USA by air to obtain two forms of government permission to travel: (1) a passport, and (2) a "cleared" message from the DHS authorizing the airline to allow the specific person to board the specific flight or ship.

One might argue that a passport is merely a travel document, not a form of permission. But that would be wrong. Because nothing in the law or the regulations for passport issuance (which were revised in November 2007), guarantees anyone a right to a passport, it is in effect a travel permit, issued at the government's discretion. The individualized, per-flight, advance "clearance" message is quite unambiguously a permission-to-travel requirement.

This International APIS rule as originally promulgated in August 2007 applied only to air and sea travel. So it might have allowed, for those with enough time and money, at least a theoretical possibility that, if the USA wouldn't give them permission to come home, they could fly to Canada or Mexico, and return to the USA from there by land.

In practice that might be very difficult, because Canada has been barring passage to people on the USA "no-fly" list, and most flights betwen Europe and Mexico overfly the USA and thus are subject to USA jurisdiction and the APIS rules. But there are some very roundabout and expensive routes from Europe or Africa to Mexico by way of South America.

The DHS has proposed that the "Western Hemisphere Travel Initiative" (WHTI) rules that already (purport to) reqire passports for USA citizens for air travel between Mexico, Canada, and the USA be extended to those crossing USA borders by land and sea. But that portion of the WHTI rulemaking proposals remains pending, with no final rules yet published..

Even this narrow loophole for return to the USA without government permission will apparently be closed, however, by new procedures announced by the DHS in a notice published in the Fegeral Register on 21 December 2007:

CBP [the DHS Customs and Border Protection division] is now amending its field instructions to direct CBP Officers to no longer generally accept oral declarations as sufficient proof of citizenship and, instead, require documents that evidence identity and citizenship from U.S., Canadian, and Bermudian citizens entering the United States at land and sea ports-of-entry.... Beginning on January 31, 2008, a person claiming U.S., Canadian, or Bermudian citizenship must establish that fact to the examining CBP Officer's satisfaction by presenting a citizenship document such as a birth certificate as well as a government-issued photo identification document.

The Federal Register "Notice" acknowledges that the WHTI proposed rules to require passports for land border crossings have not been finalized. But the "Notice" claims that the new document requirement is "separate from WHTI", is not a "rule", and is not subject to any of the same procedural requirements:

The instruction for CBP Officers to no longer generally accept oral declarations alone as satisfactory evidence of citizenship is a change in DHS and CBP internal operating procedures, and therefore is exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b).

On the basis of this claim. the DHS "Notice" neither acknowledges nor responds to any of the numerous objections that were raised to the proposed WHTI rules from both sides of the border, including formal comments on their illegality by the Identity Project. Clearly, the DHS doesn't want to address those legal defects in its travel document amd permission schemes.

The problem for the DHS is that -- regardless of the procedural requirements for changes to DHS instructions to CBP officers -- CBP officers who act on the new instructions by preventing citizens from entering or leaving the USA will be acting in violation of those citizens' rights and the obligations of the government of the USA under the Constitution and international human rights treaties.

With both this document requirement for USA-Canada/Mexico land travel and the document and permission requirement for international air travel between the USA and the rest of the world coming into effect within the next month, there is an urgent need for someone to challenge these regulations. The procedural issues are quite different, but the substantive issues of the right to travel without government papers or permission are identical.

For what little it's worth, the DHS followed its notice of the new procedures and document requirements for land border crossings with the announcement of the details of a new "passport card". Their idea was, apparently, to assuage the intense and widespread criticism of the new document requirements for land border crossings by promising to offer a cheaper alternative to a passport, "real soon now". But passport cards won't begin to be available until after the new procedures for USA-Canada/Mexico land border crossings take effect.

As I had expected , the passport card will contain a "vicinity" RFID chip, i.e. a chip that can be read at longer range than the "proximity" chip in "RFID passports. The DHS admits that each passport card will respond to any query by sending back a unique chip ID number -- apparently in the clear. So if you want a cheaper alternative to an (RFID) passport, it will have a much longer-range identity broadcasting mechanism. And as with RFID passports, there's nothing in the new rules to restrict private and commercial tracking of passport cards by their unique chip numbers, or secret commercial aggregation, use, and sale of those tracking logs.

Here's what I don't understand about this: without a travel document, how is the border guard supposed to know that the person they're letting in to the country is a US citizen? It strikes me that the old system was a huge loophole, allowing anyone with a convincing US accent into the country without a nationality check, while any naturalised US citizen with a foreign accent in effect had to have a passport regardless of the letter of the law because they were likely to be challenged. I don't see how that's better than asking everyone to have passports, like pretty much every other country in the world does.

I agree with commenter "eldan" that it would be wrong to require documentary evidence of citizenship from those with "foreign accents" but not from those with "convincing US accents". I also agree that that *is* what has been happening, in practice. But what's right -- and what both the US Constitution and international treaties require -- is to put the burden of proof on the government, if it wants to prevent soemone from crossing the border. not to increase the burden on everyone to "prove" their entitlement to travel, or to obtain (prior) gvernment permission to travel. Tavel is a right, not a privilege dependent on government papers, permission, or proof.

As for the idea that "pretty much every country in the world requires passports":

First, violations of human rights by other countries don't excuse those by the USA (or vice verso).

Second, most countries do recognize the legal right to cross borders without passports in various circumstances. For example, refugees and asylum seekers are allowed to enter many countries without passports (which, in many cases, have been denied them by the governments they are fleeing), and then make their asylum requests from the safety of the country in which they seek sanctuary. The USA is unusual in requiring, in effect, that asylum claims be made in advance, while the claimant is still on the soil and subject to the jusisdiction and possible retaliation of the country from which they are fleeing.

The burden of proof should be on the government. Any individual should be able to enter without an express rationale as to barring that person from doing so. This is not so important because of the requirements, so much as a general lack of avenues for redress if there's a screw-up, and the general consequences of being denied entry (loss of job, expenses related to managing affairs from abroad, expense of being abroad, etc.).

The DHS and TSA's no-fly registry flags are almost always false-positives. If I recall correctly the GAO reported that originally the ratio of false-positive to true-positive hits was 3000:1 -- and it's gotten worse. Further, once on the list there's currently no guarantee you can be removed (they still haven't worked that bit out). So what to do? You can be permanently barred from entry into the USA do to bureaucratic error?

The fact of the matter is that the odds are overwhelmingly in favor of concluding that a would-be entrant to the USA is a legitimate one. Rhetoric not-withstanding, the proportion of illegal immigrants and criminals (which constitute a very small part of the general population) is miniscule compared to the number of people that are traveling in accordance with the law.

Posted by: Dadov Lespians, 5 February 2008, 07:04 ( 7:04 AM)

The problem that both of you fail to address is that if there is any citizen that the US government doesn't "like" -- ie they have been using their free speech rights in ways the government doesn't like, the government can just issue an "alert" for their "forged passport".

So when that person comes to the border crossing, the border guards will confiscate the passport, without which the person cannot enter the country.

So wala! You have now permanently prevented the "undesirable" from re-entering the country and you have proceeded one step further with political cleansing.

Just as many people critical of the Bush administration mysteriously started ending up on the "no-fly" list, they will now probably mysteriously start having problems with their passports.

And eldan, you are the perfect person to help them advance their plan.

Posted by: denied, 5 February 2008, 09:06 ( 9:06 AM)

Gosh, is someone worried here? this is for our own good and protection. Anybody who is worried has soemthing to hide that is not good for the country. Sheesh

Posted by: Jim, 5 February 2008, 10:05 (10:05 AM)

SmooveJ says, "I'll be travelling to Australia in Feb. returning on March 3. There is no requirement for re-entry other than a valid US passport."

Unfortunately, there is a new, additional requirement: before the DHS will allow the airline to allow you on the plane home to the USA (assuming you are re-entering the USA by air), the airline must request and receive "clearance" for you to board the flight, i.e individualized per-fluight prior permission in the form of a "cleared" message. This new requirement is buried in ther revisions to the "international APIS" rules, as I have discussed in previous articles in this blog and in my comments to the DHS.

Jim, translating your irony, you are exactly correct that the kind of easy mindlessness apparent in that sentiment is endemic in states which objectify humans. Anyone who thinks that they are immune to the baseless destruction of their lives by a government or corporation does live in a happy fantasy.

Posted by: Andrew, 5 February 2008, 12:29 (12:29 PM)

USA = North Korea (minus the toys, for just a while yet.) Really.

Posted by: Mike, 5 February 2008, 15:48 ( 3:48 PM)

I've lived in Mexico since August 1992 and am married to a Mexican. May be about time to consider a little citizenship change. . .

Posted by: mpgingdl, 5 February 2008, 15:49 ( 3:49 PM)

Edward:

I'm trying to understand the nature of this "cleared" message and how it differs, if at all, from the current practice.

Obviously the passport requirement is pretty standard. I fly with my family back and forth between Texas and Chile on a regular basis (my wife is naturalized US citizen from Chile and our kids are dual citizens). Of course we've always carried passports as has been the rule for air travel forever.

The "Cleared" message is what I'm wondering about. Is this simply being cleared off the no-fly list which I understand has been going on for years? Or is this some new procedure separate from the no-fly list?

It's been my understanding that airlines have been clearing their passenger rosters with DHS for years now (for both foreign and domestic passengers). Is this just some new way to talk about that process? Or is it something substantively new?

Posted by: Kent, 5 February 2008, 18:47 ( 6:47 PM)

"Gosh, is someone worried here? this is for our own good and protection. Anybody who is worried has soemthing to hide that is not good for the country. Sheesh

Posted by: Jim, 5 February 2008, 10:05 (10:05 AM)"

And that attitude is what is allowing us to lose our rights as citizens on the US. I want to know, how long until we hit the point where we have to stop at check points entering and leaving cities and towns, and are asked to show our papers. You can say that this will never happen, but people said that we would never have to show passports and have special permission from the government to make day trips to Canada or Mexico. The government is forcing us to carry RFID tags in our paperwork now with the newest passports. Again, I ask how long until they are affixed to or in our bodies so that we can be tracked.

I want to state, I am not a nut thinking the government is out to get us, or that there is a New World Order in the works or anything. I just keep my eyes open, and pay attention to the news coming out of Washington. Reality scares me more than anything I've ever heard dreamed up. I keep seeing rights taken, all in the name of safety from the "Terrorists". I understand that people died in attacks from a group of terrorists, but that doesn't mean that I want to give all my freedoms and rights away, so that I can feel safe. I don't feel safe, I feel scared that the government is going to just keep taking our rights and freedoms away.

Posted by: Doug F, 5 February 2008, 19:09 ( 7:09 PM)

Wake up America? Can't you see what is happening? Don't you see the historical parallels? Can't you connect the dots? The next thing is papers for interstate travel....

Posted by: enigma5, 6 February 2008, 10:01 (10:01 AM)

Kent asks, "Edward: I'm trying to understand the nature of this "cleared" message and how it differs, if at all, from the current practice.
Obviously the passport requirement is pretty standard.... Of course we've always carried passports as has been the rule for air travel forever."

This has not been the rule "forever". USA immigration inspectors have long *asked* for passports, and most people have assumed that they were required. But in fact, until very recently (as I've detailed in this blog) no law or regulation has purported to *require* passports for returning USA citizens. And in practice, citizens have been allowed to return without passports.

Kent continues, "The "Cleared" message is what I'm wondering about. Is this simply being cleared off the no-fly list which I understand has been going on for years? Or is this some new procedure separate from the no-fly list?"

Previously, the airline sent the passenger manifest after the plane departed. Now, they are required to sent the manifest, and addiional info, before passengers even board. The requirement to get permission, and to do so earlier, before passengers board, is entirely new.

The DHS has discloed no information about the clearance process. We don't know who decides whether to "clear" you to travel, or what criteria they use. No mechanism has been provided to appeal the decion. The entire process takes place in secret.

> Travel is a right, not a privilege dependent on
> government papers, permission, or proof.

I am curious when travel became a right. It's not that I disagree, but I'm concerned that we are claiming something we feel is true without knowing that it actually is true.

I am thinking of the Japanese Shogunate (Tokugawa Period) when people of peasant-birth were not allowed to travel outside of their specific region. They simply lived on their farms and produced. I believe Medieval Europe had similar rules for the ignoble.

Has any governmental body ever established the "Right to Travel" as a fundamental human right? I'm really curious about this one.

The "pursuit of happiness" across international borders is an amusing idea. :)

Thanks for the blog.

Posted by: TK, 6 February 2008, 15:21 ( 3:21 PM)

Edward, regarding whether a passport consists of permission to travel: The Supreme Court decided in the case of Philip Agee ( http://supreme.justia.com/us/453/280/case.html; Haig v. Agee, 453 U.S. 280 (1981); http://en.wikipedia.org/wiki/Haig_v._Agee that US citizens have no right to a passport. Passports are issued at the convenience of the State Department, and they can pick and choose who to give them to, based on "national security and foreign policy" grounds. That's the current state of the law.

Because the government was mad at Agee for revealing a lot of corrupt CIA activities, George Shultz tried to make it hard for him to travel by revoking his passport in 1987. He sued. Alexander Haig defended. The CIA/State Department won.

Agee lived in Hamburg most of the rest of his life, and died just a month ago in Havana, where he ran a travel service.

It doesn't really matter whether you think the current or the next US administration will make a police state using these powers. What matters is that people who WANT to run a police state will be attracted to the positions of power that these reductions in "guaranteed, universal" human rights create.

Posted by: John Gilmore, 6 February 2008, 16:07 ( 4:07 PM)

TK asks "Has any governmental body ever established the "Right to Travel" as a fundamental human right?"

Yes. The right to travel is guaranteed by Article 12 of the International Covenant on Civil and Political Rights, a treaty ratified by, and binding on, the USA. See the links in the sidebar of my blog.

John Gilmore's pointer to Haig vs. Agee confirms what I said in my original post: Passports are issued at the government's discretion, and are not a right. A passport requirement *is* thus a permission requirement.

Agee didn't raise the ICCPR in his case, and at the time, no law or regulation in the USA purported to require passports for retyurn to the USA by citizens. So whether a passport requirement would be consistent with Article 12 of the ICCPR, or whether the government could require passports while issuing them at the government's convenience, remain as questons to be addressed in future litigation, now that the government is trying to do just that.

I just called a couple of airlines and they told me they had never heard of this "extra" requirement.
???

Posted by: Shannon, 7 February 2008, 23:38 (11:38 PM)

What's the latest on this? I happen to live in Thailand but plan to visit the U.S. sometime this summer. And I *may* have to visit there if my elderly grandmother's health deteriorates any further -- right away. Should I seek permission now just in case???

Here is a new question: If a US citizen is facing deportation and will not sign the forms for a new passport, it is possible for the US Gov't to issue a travel document without his permission. Can this be challenged constitutionally? If you have to seek permission to come back then surely your consent to come back must also be taken into account as well no matter what the circumstances. Can the Gov't issue a document in your name without your consent?

Posted by: Unknown, 3 May 2008, 22:01 (10:01 PM)

gentleman and women i presume,
i find this a very interesting blog. however only one time in this blog has the most disturbing fact been eluded to. that is, America isn't so much putting a wall up to keep people out..its to keep people in.

anyone that believes, the terrorism act got written as fast as they say it did, is foolish. that paper work is right out of the "red scare" era. McCarthy would be proud. all they needed was an excuse to pass it and praise the people in office for getting it done so quickly.

if anyone thinks this is paranoid anti gov't thinking you would do well to look at history. 1932 Berlin to be exact. Hitler enacted these same laws under guise of national security (then it was Jewish people) now its everyone. at least the USA doesn't discriminate.

"It doesn't really matter whether you think the current or the next US administration will make a police state using these powers. What matters is that people who WANT to run a police state will be attracted to the positions of power that these reductions in "guaranteed, universal" human rights create"

only response i can offer to this is from a former federal prosecutor that i know well. "we are living in a police state, the general public is too fat, dumb and happy to see it though."

anytime a gov't presumes to take travel rights away from a legal citizen, is in my opinion, a violation of human rights. i do not see on any paper work that have from my date of birth that states i must reside in the USA. i have never agreed to this. at this point in time, it seems i must get approval to leave and return to my home country. eerily feels like Germany.....men in black leather coats saying "papers please" is next.

mark my words, in 5 yrs the USA will not be the place any of us know. im glad i got out when i did.

I don't know if this is the right place to be asking questions about visitor travel information but I'm lousy at getting any information on the web that I'm looking for. If anyone here could be of assistance it would be greatly appreciated. My quetion is; Are visitors to US from Canada required to have a round trip ticket showing their return time? This is a person with a passport only.

Posted by: Mike, 18 April 2010, 11:47 (11:47 AM)

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